Comparative Criminal Justice Systems SUBSTANTIVE LAW and PROCEDURAL LAW IN THE FOUR LEGAL TRADITIONS CHAPTER FIVE Reichel

Questions Historically, we know that in common law countries judge-made law, based on custom, was the foundation of (unwritten) criminal law. How has the concepts of content, context, and time affected this premise in Scotland and the U.S.? Have expanding populations and increased heterogeneity had an effect? If so, how?

Substantive Law Common Law Civil Law Socialist Law Islamic Law Rely on statutes (codes), enacted by the legislature, to express substantive law. The Supreme Court is the final arbiter. Civil Law Every crime and every penalty must be embodied in a statute enacted by the legislature. Socialist Law Codes reflect Imprecision over specificity. Islamic Law Codes reflect three categories: 1) crimes against God (hudud); 2) crimes which require retaliation by the victim or victim’s family; and, 3) acts condemned by Shari’a or Sunna.

and private law distinguished? Question How are public law and private law distinguished?

Adjudicatory Process The Adversarial system versus The Inquisitorial system The fundamental aim of both is to find the truth.

Legal Traditions and the Adjudicatory Process Common Law Adversarial (Accusatorial) Civil Law Inquisitorial Socialist law Inquisitorial Islamic Law Mixed

The Adversarial System The adversarial system is characterized by a set of legal procedures used in Common Law countries to determine the truth during adjudication whereby the prosecution and defense counsel compete against each other while the judge insures fairness and adherence to the rules.

The Inquisitorial System The Inquisitorial system found in both Civil Law and Socialist Law countries is characterized by extensive pretrial investigation and interrogations that are designed to ensure that no innocent person is brought to trial; i.e., an official inquiry. A trial continues the investigative process with a procedurally active judiciary and passive lawyers.* * Under Socialist Law, an agent of the police or prosecution takes the investigative role.

Adversarial and Inquisitorial Systems Inquiry Judge as inquisitor Emphasis on screening phase and factual guilt. Judiciary directly involved Defendant is expected (although not required) to cooperate during investigations and at trial. Judge has the power to investigate and to decide outcome of the case. Adversarial Accusation Judge as referee Emphasis on trial stage and rules of procedure to ensure a fair trial. Judiciary restricted in investigatory and adjudicatory process Defendant is neither required nor expected to cooperate. Prosecutor is responsible for burden of proof. Checks and balances among courtroom participants – shared power.

Does the adversarial system emphasize procedure over substance? Questions Does the adversarial system emphasize procedure over substance? Is there greater diversity among nations in terms of procedural criminal law than on issues of substantive law?

Judicial Review The process by which governments are held accountable to the law and the fundamental values of a nation. As a result of judicial review, the rule of law can be achieved because the government, like its citizens, is made accountable.

Models of Judicial Review

Questions Does either the diffuse model or the concentrated model belong to any one legal tradition? Explain. Are there countries without judicial review? If so, which legal traditions do they represent?